Inclusion Of More Women In Judiciary Will Ensure That Decision Making Process Is More Responsive, Inclusive & Participatory At All Levels: Justice B.V. Nagarathna

Supreme Court Judge, Justice B.V. Nagarathna on Tuesday, made a clarion call for diversification of the legal profession, and opined that the lack of the same in the Bar and the Bench would lead to systemic lack of empathy for the circumstances and issues affecting vulnerable, and the historically marginalized groups amongst others.

The Apex Court Judge was speaking on the topic, ‘Embracing Equity in Justice Delivery System – Way Ahead’, at the International Women’s Day Celebrations organised by the Supreme Court Unit of the Adhivakta Parishad, yesterday.

"The Judiciary, at every level is required to be sensitive, independent and free from biases. While I am conscious of the fact that there is no single-point antidote that may be applied to ensure the same, I am sure, that by promoting gender diversity in the Judiciary and thereby diversifying the life experiences of those who adjudicate cases, we will be moving several steps closer towards ensuring that a multitude of perspectives have been considered, weighed and balanced in arriving at decisions. Inclusion of women in the Judiciary would also ensure that the decision-making process more responsive, inclusive and participatory at all levels," the judge said in this regard. 

Underscoring the importance of the Constitution in creating a responsive State that aims at enhancing public welfare and constructing a just society, Justice Nagarathna said that it is equity that would serve as the 'guiding principle' in securing justice. 

She explained that equity would thus represent the 'higher legal standards' and 'greater individualisation' in the application of law in rendering justice. It is on noting that the Indian justice delivery system was formed in the backdrop of deeply pervasive hierarchies, the Judge noted that in order to embrace equity, we would have to re-examine the prevailing assumptions around the legal service and justice delivery system. She thus noted that diversification would be crucial in this respect, in order to tackle the barriers to equity. 

"Homogeneity in the profiles of lawyers and judges would create a negative loop wherein new generations do not see themselves as having a place in the system- and in turn do not pursue the profession, pinching the pipeline at the earliest stages," she added. 

It is at this juncture that the Supreme Court judge was of the view that not merely symbolic, but substantive representation of women in the Judiciary is the need of the hour. 

The Merits In Greater Inclusion Of Women At The Bar & The Bench

Justice Nagarathna stated that there are several merits in the inclusion of more women in the legal fraternity at the Bar and the Bench. 

Recalling the statement made by Judge Vanessa Ruiz, the senior most Judge of the Court of Appeal for the District of Columbia, United States of America, that women judges enhance the legitimacy of the Courts by their mere presence, Justice Nagarathna opined that the greater presence of women in the Bar and on the Bench, would enhance the willingness and confidence of other women, to seek justice. She highlighted the example of Vulnerable Witness Project, which was spearheaded by Justice Gita Mittal, and which had been instrumental in ensuring that witnesses would not have to face the accused and could share their testimony in a comfortable and confidential space.

She further noted that the presence of women in the Judiciary would serve as a catalyst for the development of a "strong, independent, accessible and gender-sensitive judicial institutions", as well as the achievement of gender justice in society. 

"I would also like to state that representation for women in the Judiciary is not the only need of the hour. We need to create and foster environments, within Courts and among the members of the legal fraternity which would enable women to grow intellectually and demonstrate the merit they possess. In such an atmosphere where women are accorded fair opportunity, it would naturally follow that the number of women in the Judiciary would only enhance," the Judge added. 

The judge quipped that gender diversity was particularly significant in the legal profession where the presence of women plays a critical role in upholding the ideal of equality, fairness and impartiality of the justice system especially amongst disadvantaged groups.

The Issue Of Underrepresentation Of Women In The Judiciary

The Supreme Court judge noted that the problem of underrepresentation of women in the Judiciary is not limited to India, but even in international organizations such as the International Court of Justice, where women constituted a mere 20% of the total strength. However, she noted that in the International Criminal Court there was a greater balance with there being 9 women Judges out of the total strength of 18 Judges. 

Justice Nagarathna noted that while the number of women graduating from the leading law schools and working at junior levels in the legal profession was almost equal to their male counterparts, the same did not translate to equal representation in the workplace or in the higher positions. She observed that the upward mobility of women in the workplace was often hampered by systemic discrimination, and the 'glass ceiling'. 

She emphasized that in order to overcome the same, one would have to recognize and provide for the needs of women lawyers, starting from the very basic requirements such as  provision of adequate sanitation and hygiene facilities in the Court premises, permission to appear in legal proceedings through video conferencing or even general acts of courtesy towards women such as offering a chair in a crowded court room, and so on. 

She went on to note that women in the legal profession also face double standard and a double bind. 

"They risk criticism for being too “soft” or too “strident,” too “aggressive” or “not aggressive enough.” Further, what appears ‘assertive’ in a man often appears ‘abrasive’ in a woman," she quipped. 

Justice Nagarathna added that women lawyers also often do not receive the same presumption of competence or commitment as their male colleagues, and that this problem is especially compounded for those women belonging to identifiable minorities such as disabled women, women belonging to LGBTQIA+ community, and others. She noted that people were more likely to notice and remember information that confirms prior assumptions than any information that contradicts them.

"For example, seniors who assume that working mothers are less committed tend to remember the times they left early, not the nights that they stayed late in office. People also want to believe that their own evaluations and workplaces are meritocratic. If women are underrepresented, the most psychologically convenient explanation is that they lack the necessary qualifications and commitment," she added. 

The judge went on to note that another persistent problem was inadequate access to informal networks of mentoring and client development by women. She noted that many seniors in the profession often prefer to support those from similar backgrounds, experiences, and values, and are reluctant to spend scarce time mentoring women, since they believe that women would seen leave the profession. She noted that women who are not support would indeed, be likely to leave the profession. Sexual harassment at the workplace was yet another problem that the judge pointed out that women face, and for which they often pay a substantial and disproportionate price. 

On Breaking The Glass Ceiling

Justice Nagarathna suggested certain measures that could be adopted in breaking such barriers which hinder the growth of women in the legal fraternity. 

She opined that employers and bar associations ought to hold their leadership accountable, and that the senior lawyers ought to build a moral and a pragmatic case for diversity, and to incorporate diversity goals into the ethos of the legal profession.

She added that the Governments across the country could also provide impetus for women lawyers by ensuring inclusion of qualified women lawyers in their panels by at least 30%, and ensuring that work is assigned to them from across the spectrum of laws. She also suggested that the Courts across the country could appoint more women as amicus curiae to assist on issues of their expertise, more compulsorily, on issues concerning rights of women.

The judge noted that in fact, the development of a more diverse and inclusive profession ought to start well before law school. 

"Discrimination manifests at a very young age, and without models that show children that career pathways are open to them, the law can quickly become out of reach. Children must know at a young age that there is a pathway to a legal career," she observed. 

Access to Courts was yet another aspect that Justice Nagarathna stressed to be crucial for the broader achievement of access to justice. For this, she said that it was not only important to overcome the barriers to getting into Court, but also for receiving treatment which is consistent with the rights of litigants. 

"This requires that all attitudinal barriers which would cause decline in the voluntary usage of the system, should be eliminated. Such attitudinal barriers to access include incomprehensibility and intimidating nature of court processes, callousness of court staff including judges, re-victimisation and badgering by opposing counsel, lack of certainty in court processes," she added. 

At this juncture, she appreciated the role played by technology in overcoming the barriers, and solving equity and access issues, and pointed out how this was well-displayed during the COVID-19 Pandemic. 

The Apex Court judge also reminded that justice does not only live in courthouses, but that individuals and organizations in the community are also partners in the path towards more equitable justice delivery. 

"Collaborations between justice system stakeholders and community organizations can help people through upstream interventions that get closer to addressing the roots of where inequities manifest. Partnerships with communities and early educators to increase the pipeline of new, diverse generations of lawyers and judges can make longer-term changes to the makeup of the judiciary, creating a system that is truly representative of the people it serves. In conclusion, I must state that to realize the promise of equitable justice delivery, the judiciary is to be, in every sense, a strong institution that is accessible, efficient and committed to protecting the rights of all citizens, particularly, the vulnerable," Justice Nagarathna remarked.